United States District Court, D. Oregon
OPINION AND ORDER
Michael McShane United States District Judge
Sean Magee brings this action for judicial review of the
Commissioner's decision denying his application for
disability insurance benefits (SSDI). This Court has
jurisdiction under 42 U.S.C. §§ 405(g) and
alleges disability due to a number of conditions including:
affective spectrum disorder, dysthymic disorder, anxiety
disorder, personality disorder, social phobia, ADHD, obesity,
irritable bowel syndrome (IBS), somatoform disorder, and
sleep apnea. After a hearing, the administrative law judge
(ALJ) concluded Magee could perform the jobs of inventory
clerk, forklift driver, and hand packager. TR
Magee argues the ALJ erred in: 1) failing to explain his
adverse credibility finding; 2) rejecting or ignoring medical
opinions regarding absenteeism or tardiness; 3)
distinguishing between telephonic and in-person interaction
with the public; and 4) violating Mr. Magee's due process
right to a full and fair hearing. Because the
Commissioner's decision is based on proper legal
standards and supported by substantial evidence, the
Commissioner's decision is AFFIRMED.
reviewing court shall affirm the Commissioner's decision
if the decision is based on proper legal standards and the
legal findings are supported by substantial evidence in the
record. 42 U.S.C. § 405(g); Batson v. Comm'r of
Soc. Sec. Admin., 359 F.3d 1190, 1193 (9th Cir. 2004).
“Substantial evidence is ‘more than a mere
scintilla but less than a preponderance; it is such relevant
evidence as a reasonable mind might accept as adequate to
support a conclusion.'” Hill v. Astrue,
698 F.3d 1153, 1159 (9th Cir. 2012) (quoting Sandgathe v.
Chater, 108 F.3d 978, 980 (9th Cir. 1997)). To determine
whether substantial evidence exists, we review the
administrative record as a whole, weighing both the evidence
that supports and that which detracts from the ALJ's
conclusion. Davis v. Heckler, 868 F.2d 323, 326 (9th
Cir. 1989). “If the evidence can reasonably support
either affirming or reversing, ‘the reviewing court may
not substitute its judgment' for that of the
Commissioner, ” and therefore must affirm.
Gutierrez v. Comm'r of Soc. Sec. Admin., 740
F.3d 519, 523 (9th Cir. 2014) (quoting Reddick v.
Chater, 157 F.3d 715, 720-21 (9th Cir. 1996)).
Social Security Administration utilizes a five-step
sequential evaluation to determine whether a claimant is
disabled. 20 C.F.R. §§ 404.1520 & 416.920
(2012). The initial burden of proof rests upon the claimant
to meet the first four steps. If claimant satisfies his or
her burden with respect to the first four steps, the burden
shifts to the Commissioner for step five. 20 C.F.R. §
404.1520. At step five, the Commissioner's burden is to
demonstrate that the claimant is capable of making an
adjustment to other work after considering the claimant's
residual functional capacity (RFC), age, education, and work
experience. Id. If the Commissioner fails to meet
this burden, then the claimant is disabled. 20 C.F.R.
§§ 404.1520(a)(4)(v); 416.920(a)(4)(v). If,
however, the Commissioner proves that the claimant is able to
perform other work existing in significant numbers in the
national economy, the claimant is not disabled.
Bustamante v. Massanari, 262 F.3d 949, 953-54 (9th
alleges disability as of March 31, 2010, the date on which
his last steady work ended. Claimant alleges that his
symptoms, particularly anxiety, date back to his childhood.
TR 205. The ALJ found that claimant suffers from the
following severe impairments: affective disorder, anxiety
disorder, personality disorder, irritable bowel syndrome
(IBS), obesity, and somatoform disorder. TR 18. However, the
ALJ determined that claimant has the RFC to perform a
significant number of jobs existing in the national economy,
including claimant's past relevant work. TR 20.
Accordingly, the ALJ found plaintiff did not qualify as
disabled under the Social Security Act. TR 20.
The ALJ's Adverse Credibility Determination
argues that ALJ erred in failing to explain his adverse
credibility findings. The ALJ in this case concluded that
“claimant's medically determinable impairments
could reasonably be expected to cause alleged symptoms,
” but found claimant's “statements concerning
the intensity, persistence, and limiting effects of these
symptoms” to be not entirely credible. TR 21.
evaluating the intensity and persistence of symptoms, the ALJ
must take into consideration all available evidence, both
medical evidence and other evidence, about how symptoms
affect a claimant. 20 C.F.R. §404.1529(c). The
Cotton test places a burden on the claimant to show:
1) objective medical evidence of impairment and; 2) that the
impairment, or combination of impairments, could reasonably
produce some degree of the reported symptoms. Smolen v.
Chater, 80 F.3d 1273, 1282 (9th Cir. 1996). Once a
claimant meets the Cotton test, and there is not
affirmative evidence of malingering, the ALJ may reject the
claimant's testimony regarding the severity of their
symptoms only by providing clear and convincing reasons
supported by specific evidence in the record. Id. at
1283-84; Dodrill v. Shalala, 12 F.3d 915, 918 (9th
Cir. 1993). Examples of clear and convincing reasons include
conflicting medical evidence, effective medical treatment,
medical noncompliance, inconsistencies either in the
claimant's testimony or between his testimony and his
conduct, daily activities inconsistent with the alleged
symptoms, a sparse work history, testimony that is vague or
less than candid, and testimony from physicians and third
parties about the nature, severity, and effect of the
symptoms complained of. Tommasetti v. Astrue, 533
F.3d 1035, 1040 (9th Cir. 2008); Lingenfelter v.
Astrue, 504 F.3d 1028, 1040 (9th Cir. 2007); Light
v. Social Sec. Admin., 119 F.3d 789, 792 (9th Cir.
gave specific, clear and convincing reasons for discounting
claimant's testimony regarding the intensity and
persistence of claimant's symptoms. Claimant has
undergone treatment for symptoms of anxiety, sleep apnea,
depression, and IBS, among other ailments. Despite
claimant's subjective complaints, medical reports show
that he has stated various levels of improvement for most or
all of these ailments throughout his years of treatment. The
ALJ devotes a substantial portion of his decision explaining
how specific medical records conflict with claimant's
testimony regarding the intensity and persistence of his
counseling notes primarily report claimant's subjective
complaints, the ALJ also considered claimant's medical
management and treatment notes showing claimant benefits from
medication, objectively appears well-groomed, and does not
exhibit behavior that would prevent him from full-time work.
TR 24. The ALJ discusses medical records describing the use
of a CPAP to successfully treat claimant's sleep apnea.
TR 21. The ALJ also discusses the positive results that
claimant experienced from therapy sessions regarding symptoms
of anxiety and depression. TR 23-24.
claimant's psychological examinations also contradict his
testimony at the hearing and suggest claimant is preoccupied
with his medical conditions. A neuropsychological examination
by Dr. Walker indicates that claimant has a
“significant preoccupation about his health and somatic
functioning.” Standing in stark contrast to
claimant's subjective reports of cognitive impairments,
Dr. Walker's report concluded that claimant's verbal
intellect, overall working memory, executive functioning, and
immediate recall were all found to be in the High-Average
range. TR 22-23. TR 23. Similarly, Dr. Pollack's June
2010 evaluation states that claimant “interprets”
his academic and health concerns as being “evidence of
psychiatric conditions, such as mood or anxiety disorder,
attention deficit disorder, and dyslexia.” TR 21. Dr.
Pollack, however, opined that claimant's primary issue
was “a personality disorder with both Schizoid and
avoidant features.” TR 21.
is abundant evidence in the record that therapy and
medication were improving claimant's symptoms of anxiety
and depression. TR 661 (on 3/28/13 claimant indicates to
Onishi that depression is improving on Scopalamine); TR 598
(on 1/9/14 claimant indicates that he started with a new
therapist and was having positive results including better
mood and accomplishment of daily activities, though anxiety
was still a problem); TR 524-25 (“Throughout the
sessions the client reported that he had a decrease in his
anxiety symptoms as well as a decrease in depression
symptoms, ” though he “continues to
struggle” with those symptoms). This Court recognizes
that, as noted by Dr. Pollack, there is no “magic
bullet” that will cure a medical condition like anxiety
disorder or depression, but claimant received medical
treatment that provided moderate relief from his symptoms.
Taken as a whole, the medical records provide strong evidence
that claimant is not completely credible regarding his
representations as to the intensity, persistence, and
limiting effects of his medical conditions.
the claimant's daily living activities as described in
the ALJ's opinion demonstrate that claimant can manage
functions not consistent with his complaints of intensity.
Specifically, claimant participates in social events such as
a book club, going out to dinner, going out to movies,
shopping, and using public transportation in addition to
household chores such as vacuuming, doing laundry and dishes,
and cleaning. TR 19.
is substantial evidence on the record to support the
ALJ's adverse credibility determination.
Rejecting or Ignoring Medical Opinions Regarding Absenteeism
argues that the ALJ erred in rejecting the opinions of
various medical service providers stating that Mr. Magee
would frequently be absent or tardy due to his medical
conditions. The Court will address these issues separately.
Dr. Onishi's Opinion and Absenteeism
there exists conflicting medical evidence, the ALJ is charged
with determining credibility and resolving any conflicts.
Chaudhry v. Astrue, 688 F.3d 661, 671 (9th Cir.
2012). When a treating physician's opinion is
contradicted by another medical opinion, the ALJ may reject
the opinion of a treating physician only by providing
“specific and legitimate reasons supported by
substantial evidence in the record.” Orn v.
Astrue, 495 F.3d 625, 632 (9th Cir. 2007). Specific and
legitimate reasons for rejecting an opinion include its
reliance on a ...